opinion, has been put upon a rational footing; and the liability of a common carrier, which, as I conceive, is another distorted survival from the absolute responsibility of bailees in early law, crossed with the liability of those exercising a common calling to which I have referred. These examples are sufficient, I hope, to illustrate my meaning, and to point out the danger of inventing reasons offhand for whatever we find established in the law. They lead me to some other general considerations in which history plays no part, or a minor part, but in which my object is to show the true process of law-making, and the real meaning of a decision upon a doubtful case and thus, as in what I have said before, to help in substituting a scientific foundation for empty words.
I pass from unreal explanations to unreal formulas and inadequate generalizations, and I will take up one or two with especial reference to the problems with which we have to deal at the present time. The first illustration which occurs to me, especially in view of what I have been saying, is suggested by another example of the power of fashion. I am immensely struck with the blind imitativeness of man when I see how a doctrine, a discrimination, even a phrase, will run in a year or two over the whole English-speaking world. Lately have we not all been bored to death with volenti non fit injuria, and with Lord Justice Bowen's remark that it is volenti and not scienti? I congratulate any State in whose reports you do not see the maxim and its qualification repeated. I blush to say that I have been as guilty as the rest. Do we not hear every day of taking the risk—an expression which we never heard used as it now is until within a very few years? Do we not hear constantly of invitation and trap—which came into vogue within the memory of many, if not most of those who are here? Heaven forbid that I should find fault with an expression because it is new, or with the last mentioned expressions on any ground! Judges commonly are elderly men, and are more likely to hate at sight any analysis to which they are not accustomed, and which disturbs repose of mind, than to fall in love with novelties. Every living sentence which shows a mind at work for itself is to be welcomed. It is not the first use but the tiresome repetition of inadequate catch words upon which I am observing,—phrases which originally were contributions, but which, by their very felicity, delay further analysis for fifty years. That comes from the same source as dislike of novelty,—intellectual indolence or weakness,—a slackening in the eternal pursuit of the more exact.
